Prosecutors are filing a motion to prohibit jury selection after the judge decided to move forward with the process despite pending appeals.
MINNEAPOLIS (CN) — Jury selection is on hold in the murder trial of former Minneapolis police officer Derek Chauvin after a Monday morning debate over whether it could still be conducted with major appeals pending.
Attorneys in Chauvin’s trial for second-degree murder and manslaughter of George Floyd were set to begin jury selection Monday for a trial beginning at the end of the month. The process was delayed, however, by an extended debate over whether Hennepin County Judge Peter Cahill has jurisdiction to proceed with seating a jury while defense attorneys appeal a Minnesota Court of Appeals decision allowing for the addition of a third-degree murder charge.
Assistant Attorney General Matthew Frank, who has handled the prosecution since the Minnesota Attorney General’s Office took it over in June, argued that a jury would need to know the charges involved in the case.
He pointed out that if Chauvin’s attorney Eric Nelson opted to appeal to the Minnesota Supreme Court – which Nelson later confirmed he would – the court could take months to reach a decision.
“If we start picking a jury, it’s likely we would get 14 jurors well before those deadlines,” Frank said.
That possibility, Frank said, could mean having to redo voir dire and other important processes.
“The bottom line is, we’re creating a potential problem that cannot be waived, cannot be agreed to by the parties,” he said.
Nelson disagreed, arguing that the issue of a third-degree charge was relatively narrow and that there was a strong probability that the Supreme Court would act quickly on the high-urgency case.
“We have a three-week window of time where we can accomplish a lot. Theoretically, I can file my petition for review tomorrow,” he said.
Cahill was skeptical of Frank’s opinion, barraging him with questions about how the case differed from any other murder case with lesser-included charges.
“Generally on a homicide case, there are multiple charges, multiple degrees,” he said. “This is not unique to this case.”
The judge said that while he couldn’t consider matters related to the third-degree murder charge, he saw no issue with proceeding to pick a jury.
“Certainly you’re in your rights at this point, since you think I’m acting without jurisdiction, to seek a writ of prohibition,” he told Frank, and asked him to consider the possibility during a recess.
After the recess, Frank told Cahill he would be seeking that writ, and Cahill dismissed prospective jurors for the day in anticipation of spending the rest of the hearing on motions in limine.
For Bradford Colbert, a professor at St. Paul’s Mitchell Hamline School of Law and public defender, the situation is somewhat bizarre.
“I was amused at that,” he said of the fact that the parties were waiting for a phone call from the appeals court. “Generally, there are some courts that – there is no precedent to force the court of appeals to issue… It’s not Amazon, they don’t say ‘we’ll get back to you in 24 hours.’”
“Usually they like to go at their own pace, but it’s fair to say the Court of Appeals is following this the same as everybody else is,” he said.
Colbert’s colleague Ted Sampsell-Jones, also a Mitchell Hamline professor, agreed that the entire situation was unusual.
“In federal court, there’s clearer law on this — but in Minnesota, the law isn’t clear,” Sampsell-Jones wrote in an email. “Ordinarily, a trial court would not start trial at all, including jury selection, while a pretrial appeal is pending. Ordinarily, a trial court would wait for a final judgment from the appellate courts, and then schedule the start of trial.”
“But this isn’t an ordinary case, and I think Judge Cahill is mindful of the fact that there’s been a lot of time and money spent preparing for this trial date,” he added. “If the usual rules and practices were followed, then this trial would have to be delayed for quite some time. But I think all of the courts are working to move this case to trial as quickly as possible, so there is some amount of bending the rules going on to make that happen.”
This marks the third time prosecutors have requested the Court of Appeals’ input in the case. The higher court denied an early petition to review the severance of Chauvin’s trial from that of co-defendants Tou Thao, Thomas Lane and J. Alexander Kueng, who assisted him in Floyd’s arrest.
Minnesota Attorney General Keith Ellison said in a statement Monday that the state is ready for trial but it “must be conducted in accordance with the rules and the law.”
“Now that Mr. Chauvin has stated his intention to appeal Friday’s Court of Appeals ruling to the Minnesota Supreme Court, as is his right, the district court does not have jurisdiction to conduct jury selection or hear and rule on other substantive matters in the trial. We have filed motion with the Court of Appeals to ensure that justice is pursued properly,” Ellison said.
Floyd’s death following Chauvin’s nine-minute chokehold sparked protests and riots in Minneapolis and around the globe, pulling the United States into a racial reckoning last summer and becoming a major issue in elections that year.
The appeal discussed Monday was filed in February after Cahill declined to reinstate a third-degree murder charge against Chauvin after the Court of Appeals issued a precedential opinion in another case against a Minneapolis police officer, Mohamed Noor.
The appeals court upheld Noor’s conviction for third-degree murder in January, pushing against a longstanding Minnesota Supreme Court holding that “conduct eminently dangerous to others,” as an element of third-degree murder, requires that the conduct endanger people other than the person killed. Noor’s shooting of a civilian through a window of his police vehicle, the court found, qualified as eminently dangerous even if it endangered nobody but the murder victim.
Cahill dismissed a third-degree charge against Chauvin on similar grounds, finding that the lengthy hold Chauvin applied to Floyd’s neck was not dangerous to anybody other than Floyd.
While the judge denied the prosecutors’ motion to reinstate the charge and bring similar charges against Chauvin’s three colleagues, the Court of Appeals reversed his decision late last week.
Chauvin is the fourth police officer to be charged for the death of a civilian in Minnesota’s history, and the first white officer tried in the state for the death of a Black man.
Two of the other three cases are recent. Jeronimo Yanez, a police officer with the neighboring village of St. Anthony, was acquitted in 2017 of manslaughter and dangerous discharge of a firearm for the 2016 death of Philando Castile, which sparked protests around the Twin Cities metro. In 2019, Noor, a Minneapolis officer and part of the city’s large Somali community, was convicted of third-degree murder for the shooting death of Justine Ruczyk Damond, a white woman.
The decision in Noor’s case has also been appealed to the Minnesota Supreme Court, which accepted a petition for review with uncharacteristic speed. In that case, the state will face off with Noor’s attorney Thomas Plunkett, who also represents Kueng in the Floyd case. Arguments are set to begin in June.
The wait for the appeals court sent jurors home for the day around 10 a.m., but Cahill said he intends to bring them back to start the selection process Tuesday unless instructed otherwise. Meanwhile, the court spent the early afternoon going over a clutch of motions in limine.
Most of those motions saw little discussion, though Frank made his objection to proceeding without a go-ahead from the Court of Appeals known before starting.
The most controversial motion of the day came from Nelson, who sought reconsideration of Cahill’s earlier decision not to allow evidence regarding an encounter Floyd had with police in 2019. In that incident, Floyd was arrested and treated at a hospital after police say he swallowed drugs in an effort to hide them. Nelson and attorneys for the other three officers have repeatedly suggested that Floyd may have done the same thing prior to his May 2020 arrest and death.
In support of his effort to bring the evidence back in, Nelson said drugs found in the back of the police car Floyd was briefly held in and in the SUV he was in at the time of his apprehension bolstered that theory.
“What’s being said about this case is that the Minneapolis police overreacted to a report of a counterfeit 20 bill,” Nelson said. “When the police go to intervene and find that there are drugs in the car, or guns in the car… these are situations that call into question the amount of force that police are authorized to use.”
Cahill was skeptical, and ultimately said he’d consider Nelson’s motion but probably deny it.
“I’ll be honest, I’m not convinced,” the judge said.
“I could see how that evidence might be proper if you could say that Mr. Chauvin was part of that arrest, or knew about that arrest,” he added, but without that element the motion was unlikely to succeed.
That tracked with Colbert’s understanding. Since both parties acknowledged the drugs in Floyd’s system, he said, the use of force was the core of the issue.
“This whole case turns on whether the police officer in this case, Derek Chauvin, used reasonable force,” Colbert said. “You have a right, when you arrest somebody, to use reasonable force…. For the felony murder charge, the issue is whether what Officer Chauvin did was reasonable.”
Highlights among the remaining motions largely addressed discovery issues, wrangling roughly 400 witnesses and how witnesses and attorneys should refer to the parties.
Outside the courthouse, protesters gathered throughout the morning, marching down South 7th Street and gathering afterwards for food at the nearby U.S. Bank Plaza. Among those gathering were several teenaged family members of Dolal Idd, who was shot by police on Dec. 30 after they say he shot at them through his car window in a gas station parking lot.
Idd’s cousins Rahma and Wali Abdullahi and sister Ilhan Idd maintained their deceased relative’s innocence, and said they were there to push against unequal treatment of Minnesota’s Black and Somali residents by police.
“Let’s say he was not a victim,” Wali Abdullahi said. “There’s no way that could have been necessary.”
“They’re here to uphold the law,” but act as executioners, Wali Abdullahi said of the Minneapolis Police Department. “These officers act in a cowboy manner, and act very recklessly.”
Rahma Abdullahi put it more bluntly: “The MPD is a terrorist organization. They’ve been terrorizing our community for far too long.”
Ilhan Idd also pointed out that while police first described the shooting only as stemming from a “felony traffic stop,” it was later revealed that they had been surveilling Idd for some time. The family criticized local media, saying that it took the police’s side without questioning.
Another protester, Franklin Bridgeman, said he’d run into the march by accident on a trip down from his home in St. Cloud. He participated in protests “almost every day” in the aftermath of Floyd’s May 2020 death, and said that while he hadn’t been on the receiving end of police violence, he knew many other African Americans who had.
“The people out there… people are kind of fed up. There’s a lot of issues facing the Black community, and people have turned a blind eye,” he said.
“Until people see everyone as equal,” he continued, “it won’t go away.”